On sex work – questions, answers, more questions

Insight, Policy Matters, Jul '17Sex work or prostitution – what’s the difference? Decriminalization or legalization of sex work – same thing, right? Human trafficking and sex work (or prostitution) – is it at all possible to look at them separately? Pompi Banerjee answers some questions, but also asks some more.

So, of course, there are two clear choices here – you can either call it prostitution or sex work. Why’s that important? Because the words that we use to describe offering sexual services in exchange for money reflect the attitudes that we hold.

Many people prefer the term ‘sex work’. They see sex work as another form of work, a form of labour, and they believe that it must be recognized. Arguments put forth towards promoting this viewpoint are aimed at looking at sex work as a non-stigmatized form of work that people have a right to engage in, and pressuring the government to make adequate arrangements to see that they can work in a safe environment, free of exploitation and abuse.

This term essentially reflects an attitude that upholds the necessity of recognizing the rights of people who are into sex work. Sex work is the exchange of sexual services, performances, or products for material compensation. It includes activities of direct physical contact between buyers and sellers as well as indirect sexual stimulation. This term also takes cognizance of the agency of the sex worker to give consent to sexual services in exchange for money.

The list is sometimes expanded to include jobs in the sex industry that less directly involve the sexuality of the worker in the exchange of sexual services, performances and products. For instance, production and direction of adult films, manufacture and sale of sex toys, management of exotic dance clubs, escort agents, bouncers and so on.

The Immoral Trafficking (Prevention) Act (ITPA), 1956 defines prostitution as “the sexual exploitation or abuse of persons for commercial purposes”. People who oppose the usage of the term ‘sex work’ and prefer the term ‘prostitution’, do so because they feel that seeing it as work invisibilizes the abuse and exploitation inherent in women selling sex to men. Such arguments usually involve looking at how the consent of a woman in prostitution is almost always coerced because of lack of viable alternatives for an income.

They object to commodifying the female body, sex and sexual consent. They find prostitution to be harmful to the health and well-being of the women who are engaged in it, both physically as well as emotionally, and find it important that prostitution be abolished. There are, of course, moral undertones to some of these arguments. However, many people feel that no one goes into prostitution of their own choice, one that is free of coercion. They argue that those who sell sexual services in exchange for money are victims of abuse and exploitation in the profession, not only by the men who pay for the sex but also the pimps and brothel owners and managers.

On the issue of consent, it is believed that consent is not really possible in prostitution since sex is bought by money, and the women have sex with customers who they are not attracted to, who they may not even consider having sex with otherwise, and who routinely subject them to physical and emotional violence.

It’s important to note here that almost always these arguments are around marginalized women in sex work, and don’t really talk about people with other genders, especially men in sex work. We now know that women from privileged backgrounds also at times enter sex work, and treat it as an avenue for earning money. That there is little analyses of these aspects of people in sex work is not really surprising seeing that the debates around ‘sex work’ versus ‘prostitution’ evolved out of the discussions and debates around women’s rights and safety, and marginalized women engaged in sex work are far more in number than the others.

The questions that still remain unexplored are many, for example, to what extent are the issues of consent and agency a cause for concern for men and trans women in sex work? To what extent do they face exploitation and abuse? How do women from affluent backgrounds earning money from sex work experience their work and their ability to consent, that is, say yes or no to clients? There is so much we don’t know about men in sex work, and in different kinds of sex work! Is there an inherent assumption that men are not exploited in sex work because they are supposed to enjoy sex anyway?

Getting back to the debate on ‘sex work’ versus ‘prostitution’, there is no reason why both viewpoints can’t be valid. Is it possible to look at sex work as a legitimate form of work that often involves much exploitation, abuse and trauma? After all there are other professions too that involve these negatives but are still considered work, and attempts are made to make them less exploitative. So, isn’t it possible to make avenues to ensure safety and a good quality of life for those engaged in prostitution?

Is decriminalization of sex work enough or do we need to legalize sex work as a profession?

The debate around the previous question often evolves into this second one around ‘decriminalization’ and ‘legalization’. The two may sound like exactly the same thing, but they are not!

To start with, sex work in itself is not a crime in India. A person can’t be considered a criminal, or to have committed a crime, if they engage in sex work, that is, providing sexual services in exchange for material benefit. But almost everything surrounding sex work is criminal indeed. For example, keeping a brothel is considered a crime under Section 3 of the ITPA, 1956, solicitation is considered a crime (Section 7 of the same Act); so is dependent adult family members living off or surviving on the earnings of a sex worker (Section 4).

Decriminalization in this context means for the laws to be changed such that these things are no more considered as criminal acts. How does that help? Well, to start with, it means that sex workers can feel safer. People who argue for decriminalization of sex work are essentially asking for safer work conditions, occupational guidelines and the sex workers’ right to health and well-being. The present criminalizing attitude means that they have an added worry of exploitation by the police. Such an attitude is also a deterrent in people seeking help to deal with other kinds of abuse and exploitation.

Legalization, on the other hand, means a whole set of other things! From the experience of countries like Austria, Bangladesh, Belgium, Germany and New Zealand, it means licensing, registration, putting geographical boundaries around sex work operations, and more. Legalization of sex work also means recognizing sex work as a trade, and requires a defined minimum wage as well. Not all people advocating for the rights of sex workers are comfortable with the idea of licensing because this means added hassles and control in their lives and livelihood. The process of licensing and registration is not likely to be a smooth one or something free of stigma. Legalization does not necessarily mean safer work conditions, either. Those who won’t be registered or won’t have a license will still remain vulnerable.

Meena Seshu, the founder and Secretary General of Sampada Grameen Mahila Sanstha (Sangram), an HIV prevention and support organization that works with sex workers in Sangli, Maharashtra, is someone who talks about the difference between decriminalization and legalization with passion. She is very clear that the demand should be for decriminalization and not legalization – the idea is to bring about less regulation in the lives of sex workers, lesser meddling of the State in their day-to-day lives. Read this interview with her in The Ladies Finger!

While some people argue for decriminalization and some ask for legalization, there are also those who feel that prostitution should be abolished. They feel that women who are in sex work should be considered as victims of sex trade and rehabilitated. This view, though, doesn't say much about what that means for the people who make up the client or the customer population. Some people advocate for decriminalization of sex work and instead criminalization of clients for paying for sex. This too is likely to end up in increasing the lack of safety as for the sake of viability, sex work will be driven further underground, away from potential options for protection for sex workers.

The question then is that irrespective of what they are called – prostitutes or sex workers – what approach is more likely to help them enjoy the right to life, which according to the Constitution of India means right to a life with dignity and non-discrimination? What also about the right to life for the families and children of sex workers or prostitutes?

There is concern among many people that whether it is decriminalizing or legalizing sex work, both will lead to more trafficking. But neither of these options actually means giving legal sanction to trafficking of human beings. This is where it becomes necessary to talk about the difference between trafficking and sex work.

Is there a need for delinking sex work from trafficking?

This is possibly the least controversial question of the three. Trafficking of a person is essentially about deceiving them and taking them from one place to another, and selling them into one or the other form of exploitation and abuse. The exploitation or abuse can be being forced into sex work, bonded labour, child labour, commercial surrogacy, beggary, extractions of organs and more. The person being trafficked has been cheated, and they never consented to being sold into exploitation. They may have consented to getting married, or finding work, but not to being subjected to slavery and exploitation.

Further, people who knowingly enter sex work are more likely to be able to keep the money they earn. But people who are trafficked and sold into forced commercial sexual exploitation (not quite the same thing as sex work) do not get to keep the money that clients pay for them.

Trafficking doesn’t necessarily take place because sex work exists. Trafficking is a crime, and a violation of one’s constitutional rights. It takes place because traffickers exist, people who transport, buy and sell human beings and exploit them exist, and also because we haven’t yet been able to create a social, political, legal and economic environment that can stop trafficking from happening. The International Labor Organization estimates that forced labour and human trafficking is a worldwide industry worth 150 billion US dollars!

Equating sex work with trafficking essentially means we do not recognize trafficking for the multi-faceted, organized menace that it is and do not see how trafficking leads to various kinds of exploitation (forced commercial sexual exploitation being only one of them). The result of not recognizing this is being a society and a system that is inadequately prepared to stop trafficking as a whole. Our ignorance further allows traffickers to enjoy impunity.

As the Government of India works towards bringing in a comprehensive law to prevent human trafficking in all its forms, it’s definitely high time that we delink sex work from trafficking. Not only do we need to recognize trafficking for the organized crime that it is, we also need to spare sex work and sex workers the ignominy they don’t deserve!

Pompi Banerjee

Pompi Banerjee is a psychologist and works with an NGO for their health rights programme. She identifies as queer, gender fluid and kinky, and is a member of Kinky Collective. On her holidays she’s either glued to books or out and about – organizing or taking part in events on gender and sexuality rights.

Siddhartha Sankar

Siddhartha Sankar believes in using art and creativity to express the unspoken and give voice to the marginalized sections of society. He has studied travel and tourism, worked in the corporate sector and is currently engaged with pocket filmmaking projects.

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